Excerpt: - .....deceased hajram bi. but they were unsuccessful in the attempt to get themselves impleaded in the suit as parties to the litigation. order 22, rule 10, civil procedure code refers to an assignment, creation or devolution of any interest during the pendency of suit, but it clearly cannot apply to an assignment of interest by a person who is not a party to the litigation, and whose interest is hence not bound by the litigation. apart from this, the authorities are very clear that so long as a certain interest has not been adjudicated upon in a partition suit, the fact that it might conceivably have been adjudicated upon in that suit will never bar a subsequent suit. i can follow that reasoning of the first appellate court if any principle of res judicata could bar the rights of defendants.....

Judgment:

M. Anantanarayanan, J.

1. The Second Appeal is instituted by one N. Venkatarama Iyer, the plaintiff in the Courts below, in a suit for partition and separate possession of his alleged fourth share in the suit properties. Admittedly, the properties belonged to the co-sharers of a Muslim family, and the plaintiff (appellant) sued as a transferee or assignee for value of the rights of two of those sharers, under circumstances that are not without some degree of interest. The facts are as follows. The properties originally belonged to one Kamal Sahib who died in 1933. He left surviving him his widow Mariam Bi, two daughters Hajrm Bi and Murad Bi and a son Abdul Karim alias Nur Pasha who are contesting respondents. Mariam Bi died on 11th January, 1944. Prior to her death, she instituted a suit O.S. No. 453 of 1945 for partition along with her two daughters against her son Abdul Karim (1st respondent).

2. After the death of Mariam Bi, her two daughters were recorded as her legal representatives, the son already being on record, and the suit continued. 6n 24th April, 1944, there was a preliminary decree in this partition suit. There was a final decree on 21st October, 1944, but prior to this final decree on nth July, 1944, Hajram Bi died. Admittedly, her legal representatives were her husband Latifuddin (1st defendant herein) and her son Sheik Abdual Jaleel (2nd defendant herein). They attempted to be brought on record in O.S. No. 453 of 1943 as the legal representatives of Hajram Bi, but they failed in this attempt. It is unnecessary for our present purpose to deal with the merits of the refusal of the Court to Bring those persons on record as the legal representatives of the deceased Hajram Bi. It is sufficient to note that a Civil Miscellaneous Appeal filed by them was also dismissed, and that the present defendants 1 and 2 were never brought on record as parties in O.S.No.453 of 1943.

3. After the final decree in O.S. No. 453 of 1943, Abdul Karim (1st respondent), who had been ex parte in that suit, filed applications for setting aside the preliminary and final decrees, and permitting him to contest the re-opened suit; those application were successful. But on the same date 3rd September, 1945, the suit itself was', dismissed as settled out of Court between the parties on-record. It has to-be care, fully noted that Latifuddin and Sheik Abdul Jaleel (present defendants 1 and 2), the admitted legal representatives of Harjam Bi, were not parties to this settlement out of Court and the consequent dismissal of the suit.

4. On 7th May, 1945, the plaintiff (appellant, N. Venkatarama Iyer) purchased, the fourth share of the husband and son of Hajram Bi (defendants 1 and 2) under a registered deed of conveyance for value. He brought this suit for partition, on the simple ground that he had stepped into the shoes of those heirs and that their rights had never been decided ; it may be that Abdul Karim (1st respondent) was permitted to be in absolute enjoyment of the properties after the dismissal of O.S. No. 453 of 1943, but that can only be without prejudice to the rights of the legal repre-sentatives of Hajram Bi, who were not parties to the settlement out of the Court and the dismissal of the suit. Nor can there be any question of adverse possession against the husband and son of Hajram Bi, who are Muslim co-sharers equally with Abdul Karim, and that proposition is not seriously in dispute. Nevertheless, the learned District Judge in the first appeal has dismissed the suit of the plaintiff on three main grounds. Firstly, he seems to hold upon a reasoning, which is very difficult to follow, on the strength of certain decisions, which do not appear to have been properly applied to the facts in this case, that even the legal representatives of the deceased Hajram Bi were bound by the dismissal of O.S. No. 453 of 1943 and could not thereafter agitate their rights., Secondly, he thought that the transfer in favour of the plaintiff was not for value, and hence the plaintiff had no right. Thirdly, he felt that the suit was out of time.'

5. The first ground is patently fallacious, and can be immediately dealt with Order 22, Rule 10, Civil Procedure Code, has been referred to by the learned District Judge, but it has no application to the facts of the present case. No doubt, the plaintiff became the purchaser of the interest in the suit properties of the two. sharers (defendants 1 and 2) who represented the deceased Hajram Bi. But they were unsuccessful in the attempt to get themselves impleaded in the suit as parties to the litigation. Order 22, Rule 10, Civil Procedure Code refers to an assignment, creation or devolution of any interest during the pendency of suit, but it clearly cannot apply to an assignment of interest by a person who is not a party to the litigation, and whose interest is hence not bound by the litigation. Apart from this, the authorities are very clear that so long as a certain interest has not been adjudicated upon in a partition suit, the fact that it might conceivably have been adjudicated upon in that suit will never bar a subsequent suit. I can follow that reasoning of the first appellate Court if any principle of res judicata could bar the rights of defendants 1 and 2. But as I have stressed earlier, the facts are that they were not parties to the partition suit, and that the share or interest of Jahram Bi was never adjudicated upon in that suit. Nor was it the subject-matter of any settlement between the parties. As far as Order 22, Rule 10, Civil Procedure Code, is concerned, Kalliam Kutti v. Kallingal Tarvad Karunwan (1925) 87 Ind. Cas. 402, a decision of Wallace, J., is authority for the view that Order XXII, Rule 10, Civil Procedure Code, will not apply to an assignee from a legal representative of a deceased plaintiff, when the legal representative himself was not brought on record. As regards the fact that a second suit for partition will not be barred, so long as the interest itself has not been adjudicated upon a very strong case in favour of the plaintiff (appellant) is Naha Haji v. Veeran : AIR1942Mad364 . Where a person who was a party-defendant to a suit for partition, had an option to pay the Court-fee and seek relief in respect of his interest, but did not do so, it was held that a separate suit for partition was not barred. There were also other cases of other High Courts referred to by the learned District Judge himself, emphasising the position that a second suit would be maintainable, even, for instance, where the earlier suit had been dismissed for default. Actually, the discussion of the case-law by the learned District Judge in the first appeal is really in favour of defendants 1 and 2 and incidentally of the plaintiff-appellant. It is all the more difficult to follow the conclusion of the learned District Judge that the rights of defendants 1 and 2 were barred by the dismissal upon a reported settlement out of Court, to which they were not parties, of the earlier suit O.S. No. 453 of 1943.

6. I hold that the rights of defendants 1 and 2 were never barred, that possession by Abdul Karim could never be adverse to them, and that they have an indisputable right to a partition of their one-fourth share. With regard to the present suit of the plaintiff being out of time, a ground urged by learned Counsel for the contesting respondent, I see from the record that it lacks substance. The plaintiff was certainly bound to bring his suit within twelve years of his assignment, but he has actually done so. The summer vacation of the concerned Court has been rightly excluded, and this is specified in the plaint itself, and has not been controverted. With regard to the transfer, I again find from the record that defendants 1 and a were duly served, that they had notice of the suit and that they remained ex parte and continued to be so through out. In other words, when they had an opportunity to do so, they did not come forward to deny the transfer of their interest under a registered document, or to claim that it was sham or that it never took effect. The concurrent findings of the Courts below appear to be that the plaintiff did obtain rights under the document of conveyance, though the learned District Judge seems to doubt the reality of the consideration. All that the contesting respondent can claim is that he should be protected against any subsequent action of defendant 1 and with regard to their interest or share. Certainly he is entitled to this protection, as they are party-defendants who chose to remain ex parte in spite of service. The plaintiff-appellant is, therefore, entitled to the recognition of the conveyance in his favour, and to the decree for partition on that basis.

7. Under the circumstances the Second Appeal is allowed, setting aside the decree of the first appellate Court, and restoring the decree of the trial Court. But there will be the modification that in view of the important circumstance that the plaintiff-appellant seems to have been a speculative purchaser of the interests of certain co-sharers in a Muslim family, and to have filed the suit only upon the very verge of limitation, the parites will bear their own costs throughout.